D.G. Certifiers Pty Ltd v Hawksworth (No 2) - [2018] QDC 164

DISTRICT COURT OF QUEENSLAND

CITATION:

D.G. Certifiers Pty Ltd & Another v Hawksworth (No 2) [2018] QDC 164

PARTIES:

D.G. CERTIFIERS PTY LTD
(first plaintiff)

and

DARRYL ANTONY GREEN
(second plaintiff)

v

STEVEN GEORGE HAWKSWORTH
(defendant)

FILE NO/S:

3749 of 2015

DIVISION:

Civil

PROCEEDING:

Claim

DELIVERED ON:

21 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Rosengren DCJ

ORDER:

The plaintiffs are to pay the defendant’s costs of the proceeding on the standard basis.

CATCHWORDS:

DEFAMATION – PROCEDURE – COSTS – where the plaintiffs’ claims in defamation against the defendant were dismissed after trial – where the defendant contends for costs to be awarded on an indemnity basis pursuant to s 40(2)(b) of the Defamation Act 2005 (Qld) – where the defendant made one offer to settle prior to trial – where the plaintiffs rejected the offer – whether the plaintiffs acted unreasonably – whether an award of costs on an indemnity basis is in the interest of justice - whether costs ought to be awarded on an indemnity basis

Defamation Act 2005 (Qld) ss 15, 40
Uniform Civil Procedure Rules 1999 r 361, r 681

Astway Pty Ltd v Council of the City of the Gold Coast [2007] QSC 224
Di Carlo v Dubois [2002] QCA 225
Hyndes v Nationwide News Pty Ltd [2012] NSWCA 349
The Ten Group Pty Ltd (No 2) v Cornes (2012) 114 SASR 106
Nationwide News Pty Ltd v Weatherup [2017] QCA 70
Roberts v Prendergast [2013] QCA 89
Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298
Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68
Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 3) [2016] QSC 150
Maclag (No 11) Pty Ltd as trustee for the Burns Family Trust & Anor v Chantay Too Pty Ltd as trustee for the Chantay Trust (No 2) [2010] QSC 396
Rosinak v Governor Insurance Office (1997) 41 NSWLR 608
Emmanuel Management Pty Ltd (in liquidation) v Fosters Brewing Group and Ors [2003] QSC 299
Todrell Pty Ltd v Finch (No 2) [2007] QSC 386

COUNSEL:

A Newman for the plaintiffs
The defendant appeared on his own behalf

SOLICITORS:

Goldsmiths Lawyers for the plaintiffs
The defendant appeared on his own behalf

[1] In this matter I gave judgment on 17 May 2018 that the plaintiffs’ claims be dismissed. The defendant, who is self-represented, was absent from Australia at the time. I indicated that subject to further written submissions to be provided by 4pm on 8 June 2018, the plaintiffs would be ordered to pay the defendant’s costs on a standard basis.

[2] Further written submissions were made by the parties. The plaintiffs’ submissions were provided on 8 June 2018. By email dated 11 June 2018, the defendant requested an extension until 13 June 2018. This was because he had assumed that costs would be automatically awarded to him and he was unaware that there was a discretion as to whether costs would be ordered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QDC 164
Decision Date: 21 August 2018

CaseChat Overview and Summary

In the matter of D.G. Certifiers Pty Ltd v Hawksworth, the plaintiffs brought a defamation claim against the defendant, which was ultimately dismissed after a trial. The defendant sought costs on an indemnity basis in accordance with section 40(2)(b) of the Defamation Act 2005 (Qld), citing the plaintiffs' unreasonable rejection of an offer to settle prior to the trial as a basis for such an award. The central issue for the court was to determine whether the plaintiffs' actions were unreasonable and whether an indemnity costs order was in the interest of justice.

The court examined the circumstances leading up to the plaintiffs' rejection of the offer, focusing on the merits of the case and the conduct of the parties. The defendant had made one offer to settle before the trial, which the plaintiffs declined. The court assessed whether this rejection was reasonable, taking into account the strength of the plaintiffs' case and the likelihood of success. The reasoning involved a detailed analysis of the offer's terms, the plaintiffs' legal advice, and the overall context of the litigation. The court concluded that the plaintiffs' decision to reject the offer was not unreasonable given the specifics of the case and the information available to them at the time.

Consequently, the court decided that an award of costs on an indemnity basis was not warranted. Instead, the plaintiffs were ordered to pay the defendant's costs of the proceeding on the standard basis. This outcome reflects the court's view that the plaintiffs' conduct, while not ideal, did not reach the level of unreasonableness required to justify indemnity costs under the relevant statutory provisions.

Orders

Orders of the court

The plaintiffs are to pay the defendant’s costs of the proceeding on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	D.G. Certifiers Pty Ltd & Another v Hawksworth (No 2) [2018] QDC 164
PARTIES:	D.G. CERTIFIERS PTY LTD (first plaintiff) and DARRYL ANTONY GREEN (second plaintiff) v STEVEN GEORGE HAWKSWORTH (defendant)
FILE NO/S:	3749 of 2015
DIVISION:	Civil
PROCEEDING:	Claim
DELIVERED ON:	21 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Rosengren DCJ
ORDER:	The plaintiffs are to pay the defendant’s costs of the proceeding on the standard basis.
CATCHWORDS:	DEFAMATION – PROCEDURE – COSTS – where the plaintiffs’ claims in defamation against the defendant were dismissed after trial – where the defendant contends for costs to be awarded on an indemnity basis pursuant to s 40(2)(b) of the Defamation Act 2005 (Qld) – where the defendant made one offer to settle prior to trial – where the plaintiffs rejected the offer – whether the plaintiffs acted unreasonably – whether an award of costs on an indemnity basis is in the interest of justice - whether costs ought to be awarded on an indemnity basis Defamation Act 2005 (Qld) ss 15, 40 Uniform Civil Procedure Rules 1999 r 361, r 681 Astway Pty Ltd v Council of the City of the Gold Coast [2007] QSC 224 Di Carlo v Dubois [2002] QCA 225 Hyndes v Nationwide News Pty Ltd [2012] NSWCA 349 The Ten Group Pty Ltd (No 2) v Cornes (2012) 114 SASR 106 Nationwide News Pty Ltd v Weatherup [2017] QCA 70 Roberts v Prendergast [2013] QCA 89 Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298 Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68 Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (No 3) [2016] QSC 150 Maclag (No 11) Pty Ltd as trustee for the Burns Family Trust & Anor v Chantay Too Pty Ltd as trustee for the Chantay Trust (No 2) [2010] QSC 396 Rosinak v Governor Insurance Office (1997) 41 NSWLR 608 Emmanuel Management Pty Ltd (in liquidation) v Fosters Brewing Group and Ors [2003] QSC 299 Todrell Pty Ltd v Finch (No 2) [2007] QSC 386
COUNSEL:	A Newman for the plaintiffs The defendant appeared on his own behalf
SOLICITORS:	Goldsmiths Lawyers for the plaintiffs The defendant appeared on his own behalf